Three out of the four state bar ethics committees in the United States that have issued rulings on the personal use of marijuana say attorneys who smoke weed are not in violation of any moral code.
In addition to bars in Colorado and Connecticut, the Washington State Bar Association recently issued an opinion that suggests lawyers who choose to not only use marijuana, but also invest in a business related to the cannabis industry, are free to do so without running the risk of having their licenses revoked.
The latest opinion picks up where the Washington Supreme Court left off in 2014, after creating a new section in the handbook of attorney conduct that allows lawyers to represent members of the marijuana industry. However, in clarifying one potential issue, the state’s highest court failed to provide guidance in regards to the applicable discipline for attorneys who wish to use marijuana as well as capitalize from investments in its trade.
After Washington voters approved Initiative 502, legalizing the cultivation, sale and possession of recreational marijuana, the state bar sought clarification from the Supreme Court pertaining to counsel dealing with clients connected to the cannabis industry. According to the Washington Rule of Professional Conduct 1.2, “a lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent,” which raised obvious questions with state bar officials as to whether serving a business that sells a federally prohibited product constitutes a violation of ethics rules—even though the substance is legal under state law.
Ultimately, the supreme justices ruled that counseling the cannabis industry was acceptable behavior. Yet they failed to elaborate on whether or not it was unethical for lawyers to use marijuana recreationally or to invest in business opportunities associated with it.
A recent article from The American Bar Association and The Bureau of National Affairs suggests that the WSBA is the first bar ethics council to respond to the question of whether attorneys are allowed personal involvement in the marijuana industry. In its opinion, the committee argued that the issue would only pose ethics concerns if the marijuana business in which an attorney was associated with was directly connected to his or her law firm.
Therefore, as long as the two operations remain “separate and apart,” and the rules related to client transactions continue to be upheld, there is no threat of breaching conduct codes.
The WSBA also concluded that lawyers who purchase marijuana from state licensed dispensaries or retail outlets and consume said products(s) in compliance with state law are not in violation of ethics rules. That is, as long as the consumption of cannabis products does not hinder their capacity “to provide competent legal advice and otherwise comply with” the lawyer’s oath of office.
Unfortunately, positive rulings in favor of attorneys using marijuana and capitalizing from the market in legal states do not exactly set a precedent across the board. Despite bars in Colorado and Washington allowing lawyers to smoke weed recreationally, as well as the Connecticut ethics committee signing off on medicinal use of the herb, the North Dakota bar has determined that a lawyer cannot “live and use medical marijuana prescribed by a physician in Minnesota while being licensed to practice law in North Dakota.”
It seems likely, however, that as more states continue to legalize the leaf for whatever purpose, ethics committees will stand behind the actions involving the use and sale of cannabis as long as attorneys remain in compliance with state law.
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